Postpone mandate test, Court urged

Posted Fri, January 6th, 2012 11:19 pm by Lyle Denniston

In a sweeping challenge to the claim of 26 states and others that Congress had no power to enact the mandate requiring virtually all Americans to obtain health insurance by 2014, a lawyer appointed by the Supreme Court urged the Justices on Friday to throw out all existing challenges and bar any more for at least three years. If the Court were to apply the federal Anti-Injunction Act, as Washington lawyer Robert A. Long, Jr., proposed, it would leave the mandate intact at least until it was actually enforced, sometime in 2015 (assuming that Congress does not disturb the law in the meantime). The amicus brief. arguing a point that no one directly involved in the pending health care case would make, can be found here.

The Anti-Injunction Act argument, based on the premise that the mandate with its attached penalty for failure to get medical coverage is a form of federal tax, has lingered as a kind of “sleeper” argument in the test of the constitutionality of the Affordable Care Act. While some lower courts have accepted the argument, it has not had high visibility in public discussions of the ACA, and yet it obviously has the potential to change both the legal and political paths of the new law’s central and most controversial feature.

The brief, prepared by a lawyer directly chosen by the Justices for the task, not only suggested a broad reading of the Anti-Injunction Act in its own terms, but also said that its ban on attempts to block a feature of federal tax law was equally binding on state governments, too. The governments of 26 states were the first to go to court in March of last year to challenge the insurance-purchase mandate, and they, with other challengers, persuaded the Eleventh Circuit Court to strike it down as beyond Congress’s power. The Circuit Court did not even discuss the Anti-Injunction Act issue, but the trial court in the case found it did not apply.

The new brief, one of the last of the principal briefs due Friday to reach the Court, by no means is guaranteed to persuade the Justices to end the mandate part of the case virtually immediately. All of the parties in the case dispute Long’s basic premise, that the Act does apply to the mandate; that is why the Court handed the assignment to him.

The Obama Administration and the 26 states no doubt will contest his basic argument when they file their opening briefs on this issue Feb. 6. After that, Long and his adversaries on this issue will have opportunities to file separate reply briefs. (The Administration, differing with the states, has said that, if the law does apply to the mandate challenges, that would bind the states, too.)

It is unclear what would happen to the remainder of the constitutional challenges to the health care law, if the Court were to accept the Long brief’s point. At a minimum, that would take away the separate question now before the Court of what to do about the remainder of the law if the crucial feature of the mandate were nullified. But it would not necessarily end the states’ challenge to the broad expansion of the federal Medicaid program for the poor. Some challengers of the new health law have contended that the entire law was meant by Congress to fit together. Long’s brief, in its last paragraph, recommended only that the Court vacate the Eleventh Circuit Court decision on the mandate and penalty, and order the Circuit Court to dismiss the challenge to the mandate and penalty “for lack of jurisdiction.”

The Anti-Injunction Act, dating originally from 1867, is a flat ban on any lawsuit seeking to block “the assessment or collection of any tax,” and thus applies as a bar to such challenges before such a tax provision is actually imposed on a particular taxpayer. The law says that its bar applies to “any person.” (Over time, Congress has created 14 specific exceptions to the law, but none applies in this case.) The whole idea of the provision, at its origin and since, is to make sure that the federal government’s flow of revenues is never halted until a tax provision at least has been enforced. The government, the Supreme Court said in 1875, “depends for its continued existence” upon tax revenues.

Long’s brief noted that, at times, the Supreme Court has made exceptions to the bar beyond those that Congress has written into it, but in each such situation the Court retreated and rehabilitated the Act’s scope. Long recalled that the last of those restoration decisions, in the 1962 case of Enochs v. Williams Packing & Navigation Co., was later described by the Supreme Court as having spelled “an end to a cyclical pattern of allegiance to the plain meaning of the Act, followed by periods of uncertainty caused by judicial departure from that meaning, and followed in turn by the Court’s rediscovery of the Act’s purpose,” Long recalled. Not since Williams Packing, the brief noted, has the Court failed to apply the bar literally.

Early in the challenges to the new insurance-purchase mandate, the Obama Administration took the position that those lawsuits were barred by the old revenue-shielding law. After losing on that point repeatedly in District Courts, the Administration abandoned that argument, and now disagrees with Long’s argument. The Administration, though, had urged the Court in taking on the health care case to name a lawyer from outside of it to make that argument.

The anti-injunction law poses a significant threat to the mandate challenges — if the Court treats the mandate as a form of tax — because it actually takes away the jurisdiction of a federal court to hear any such challenge. Long said the Court had never retreated from the view that the law is a jurisdictional bar, and the Court has held that the government itself cannot waive that bar.

It appears, at this stage, that Long is not likely to be challenged heavily on his treatment of the law as a jurisdictional bar. Where the contest is more likely to come is on whether the insurance-purchase mandate and its attached penalty for non-compliance are, in law, tax provisions. The new health care law put the mandate into the federal tax code, and said it was to be enforced just as other taxes are, Long’s brief said. If anyone can challenge the assessment and collection of the mandate penalty in court, the brief added, that would mean that the penalty was not being treated the same as other taxes. contrary to what Congress specified.

When the Anti-Injunction Act was first enacted in the nineteenth century, the brief said, the ordinary meaning of “tax” included “almost every species of imposition on persons or property for supplying the public treasury.”

The bar in the old law, Long wrote, cannot be avoided by claiming that the legal challenge now before the Court is a test only of the mandate, and not of its related penalty. If the mandate were struck down, that, too, would bar the government from collecting revenue for violations, the brief argued.

To the 26 states’ contention that the bar does not apply to them, the Long filing said that the Supreme Court and other courts have interpreted the word “person” in the federal tax code as including states.

Congress could, if it wished, change the law to authorize immediate court review of the constitutionality of the insurance-purchase mandate, “but it has not done so in this case,” Long noted.

(NOTE TO READERS: The blog has chosen to treat this one brief separately from the others filed on Friday. The other principal briefs, discussed in the post below, involve the merits of some of the issues before the Court in the health care litigation. The Long brief goes to the core question of whether the Justices and any lower court have the authority to rule on the mandate’s validity at this point.)

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.